acknowledged to be appropriate instructions, in the sense of stating the syllabus properly, were given.
The effective question is whether either because there was no timely objection, or because an appropriate instruction was given, both in the course of trial and during the charge, or for both reasons, the potential for prejudice, if any, was dispelled, and hence, no ground for a new trial is presented.
If this were a case in which the government had a proper reason for inquiring about the guilty plea at the time that inquiry was made, then an instruction which directed the jury not to regard the guilty plea as substantive evidence, but to consider it only as it affected, for example, the question of the witness' credibility, could be looked to with at least some reliance.
Here, however, we have a situation in which, as I have considered the record, there was not in my judgment any proper ground at the time the inquiry was made for making the inquiry into Mr. Tyahla's guilty plea.
Under those circumstances, I think defendant Calafati is on sound ground in contending that the appropriate instructions were in a sense wide of the mark, that is to say, there were instructions which told the jury not to consider the guilty plea by Mr. Tyahla as substantive evidence against the defendants on trial, but gave the jury no guidance as to what its proper utility was.
Under those circumstances, so it seems to me, the hazard that the court of appeals is so concerned about in Gullo can't be said to have been fairly dissipated. That hazard, to repeat, was that, as the court of appeals put it in Gullo, 502 F.2d at 761 (citation omitted), "The crime by definition requires the participation of another. The jury could not fail to appreciate the significance of this and would realize, as the court said in a similar case, that 'it takes two to tango.'"
Under these circumstances, so it seems to me, the unguarded admission of the Tyahla plea on the first day of Mr. Tyahla's testimony, not dealt with by instructions until the following day, and even then, not in a way that would give the jury some firm alternative and permitted use for the testimony, doesn't cure the difficulty.
Is the error here which I perceive one which is to be scotched by reliance on the fact that there was no contemporaneous objection? In most circumstances, courts depend on counsel promptly to voice objections to perceived errors, whether modest or of considerable significance. But it is, of course, common ground that errors of major consequence may require remedial action by a court at whatever point the error is identified, and here I think the error was one of potentially major consequence. Whether the error worked to the actual prejudice of Mr. Calafati, or his co-defendant, Mr. Golden who was also convicted, is, of course, something I have no way of determining on the record as it stands, and no way of developing a further record on by way of amplification.
It seems to me inappropriate, where the error is perceived by the court to be of this magnitude, to place on the defendant the burden of demonstrating prejudice where in the nature of things neither the defendant could prove prejudice, nor the government could prove the absence of prejudice.
I am satisfied that there was real potential for prejudice, and a potential not dissipated by instructions which were in form entirely proper, but which in the nature of things could not cover the whole ground because they couldn't sufficiently advise the jury of a proper use for evidence which I now conclude should not have come into the case at all, at least at the time at which it was proffered.
I have considered whether this is a case in which I could conclude the evidence of guilt is so overwhelming that it would be fair to say that the conjectured possibility of prejudice could be ignored.
I cannot fairly, responsibly come to that conclusion. My own personal judgment, on the basis of the testimony as I heard it presented, is that had I been a member of the jury, I would have joined the jury in finding Mr. Calafati guilty and in finding Mr. Golden guilty. I'm satisfied that the government had a very, very strong case against both of the defendants; I'm also satisfied that the government's case was much weaker against the third defendant, Mr. Garifola, who was, in fact, acquitted by the jury.
But though I find the government's case to have indeed been a strong one against the two defendants who were convicted, I'm not prepared to say that this record, minus the challenged plea of guilt of Mr. Tyahla's, would necessarily have led to the same result.
The trial was a complex one and a hotly contested one with several untidy aspects. I think it would be inappropriate for me to conclude that the verdicts arrived at are unassailable, notwithstanding what I here conclude was an error on my part in not addressing firmly the question of the Tyahla plea of guilty, either mea sponte when it was first proffered without objection, or when a day later defense counsel moved for a mistrial.
I conclude, in short, that the interests of justice impel granting Mr. Calafati's motion for a new trial on the ground which I have discussed, namely, the inappropriateness of the introduction of the Tyahla guilty plea at the time it was introduced.
Accordingly, I will enter an order setting the verdict aside and directing a new trial in Mr. Calafati's case. There is no such motion before me with respect to Mr. Golden: his case is now on appeal to the court of appeals, and I think, accordingly, I have no power in the premises with respect to Mr. Golden's case at this time.
I would, however, request Ms. Staton and Mr. Whitt to advise counsel for Mr. Golden, and also advise the court of appeals, of my disposition of Mr. Calafati's motion, so that whatever action may be appropriate may be taken in the court of appeals with respect to Mr. Golden's case.
In view of my disposition of the motion on the ground discussed, there is no occasion for me to address other possible grounds, including the particular one that was briefed for today's hearing but not argued.
I want to thank counsel for their assistance in this complex matter.
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